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STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
is characterized by the equality of its parties (
i.e.
the foreign State does not act in
a position of public authority), the acts of the State are not
acta jure imperii
,
and the
State does not enjoy immunity with respect to that relationship and the acts involved.
Contemporary international law of immunities contrasts the State’s exercise of
public powers with its engagement in private relations.
51
State immunity is almost
universally conceptualized as limited and not absolute.
52
States enjoy immunity
only with regard to sovereign or governmental acts (
acta jure imperii
); they have no
immunity with respect to commercial or private acts (
acta jure gestionis
).
53
However, beyond this general principle and some broad consensus as to the types
of (potential) limitations, States’ views on the scope of restrictiveness vary widely.
54
What constitutes an
acte jure gestionis
is largely unsettled. The ICJ did not define
the concept in its
Jurisdictional Immunities
Judgment,
55
and different countries have
adopted different approaches in this respect.
56
In fact, even practice within a single
State may be ambiguous.
57
51
Fox H. and Webb P., The Law of State Immunity, 4 and 26.
52
Yang X.,
State Immunity in International Law
, 12, even if some domestic courts, especially lower
courts or specialized courts, sometimes struggle with its application (
see
, for example, the Russian
courts’ decisions leading to
Oleynikov v. Russia,
European Court of Human Rights, Application No.
36703/04, Judgment of 14 March 2013. However, note China’s recent position that “the position of
China in maintaining absolute immunity has not been changed, and has never applied or recognized
the so-called principle or theory of ‘restrictive immunity’” cited in
Democratic Republic of Congo v FG
Hemisphere Associates LLC
, Hong Kong Court of Final Appeal, Judgment of 8 June 2011, para. 202.
53
See
,
Jurisdictional Immunities of the State
(Germany v. Italy), International Court of Justice, Judgment
of 2 February 2012, paras. 55 ff.;
Mahamdia v Algeria,
Court of Justice of the European Union (Grand
Chamber), case No. C-154/11, Judgment of 19 July 2012, paras. 54-55; United Nations Convention
on Jurisdictional Immunities of States and Their Property, 2004; European Convention on State
Immunity, 1972; Yang X., State Immunity in International Law, 3 , 32, and 58; Stoll P.-T., State
Immunity, para. 25; Fox H. and Webb P., The Law of State Immunity, 32-34. However, whether this
basic distinction between
acta jure imperii
and
acta jure gestionis
is appropriate is debatable. As Andrea
Bianchi has suggested, the distinction may not be at all adequate, because, among other things, it tends to
make it difficult for states to acknowledge the peculiarity of certain facts – such as human rights violations.
Bianchi A., Overcoming the Hurdle of State Immunity on the Domestic Enforcement of International
Human Rights.
54
Stoll P.-T., State Immunity, para. 26; Crawford J.,
Brownlie’s Principles of Public International Law
(8
th
ed., Oxford University Press 2012), 490.
55
Jurisdictional Immunities of the State
(Germany v. Italy), International Court of Justice, Judgment of
2 February 2012.
56
Common law jurisdictions have generally adopted comprehensive statutes on State immunity, with specific
lists of exceptions to the general rule of immunity (similarly to the UN and European Conventions).
Consequently, the courts in these countries deal with the distinction between
acta jure gestionis
and
acta
jure imperii
only
in relation to the residual category of commercial acts; in other instances they simply
apply the explicit statutory exemption. In contrast, in civil law systems, all immunity cases are resolved
under the general commercial or private-law exception and the distinction between
acta jure gestionis
and
acta jure imperii
is the fundamental distinguishing criterion in all of them.
57
See
, for example, the discussion of the US case law in Yang X., State Immunity in International Law,
87-98.